Teese v Woodgate

[2004] NSWSC 1113

Reported Decision: 62 NSWLR 127

Supreme Court

CITATION:

TEESE v WOODGATE & ORS [2004] NSWSC 1113 revised - 26/11/2004

HEARING DATE(S):

8 November 2004

JUDGMENT DATE:

8 November 2004

JUDGMENT OF:

Levine J

DECISION:

1. Summons dismissed.; 2. Each party to pay its own costs.

CATCHWORDS:

Federal Magistrates Court - NSW Sheriff - powers of the latter to act in aid of the former's processes

LEGISLATION CITED:

Federal Magistrates Act 1999 s78, s90, s106, s107

PARTIES :

ANN-CAROLYN TEESE
(Plaintiff)

v

GILES GEOFFREY WOODGATE
(First defendant)

THE SHERIFF OF NEW SOUTH WALES
(Second defendant)

THE REGISTRAR
FEDERAL MAGISTRATES COURT OF AUSTRALIA
(Third defendant)

THE SHERIFF
FEDERAL COURT OF AUSTRALIA
(Fourth defendant)

FILE NUMBER(S):

SC 13655 OF 2004

COUNSEL:

B Skinner
(First defendant)

SOLICITORS:

D Knaggs
(Plaintiff)

Sally Nash & Co
(First defendant)

Australian Government Solicitor
(Third and fourth defendants)

Ex tempore: revised
[2004] NSWSC 1113

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

MONDAY 8 NOVEMBER 2004

13655 OF 2004

ANN-CAROLYN TEESE
(Plaintiff)

v

GILES GEOFFREY WOODGATE
(First defendant)

THE SHERIFF OF NEW SOUTH WALES
(Second defendant)

THE REGISTRAR
FEDERAL MAGISTRATES COURT OF AUSTRALIA
(Third defendant)

THE SHERIFF
FEDERAL COURT OF AUSTRALIA
(Fourth defendant)
JUDGMENT (Federal Magistrates Court – NSW Sheriff – powers of the latter to act in aid of the former’s processes)

1 This matter has some history in this Court and in the Federal Court, a great deal of which is recited in the judgment of Smart AJ of 22 October in matter number 13222 of 2003.

2 A summons issued on 5 November seeks declarations that the New South Wales Sheriff has no authority or power to execute or enforce any judgment or order or process in aid of any judgment or order of the Federal Court of Australia or the Federal Magistrates Court of Australia and consequential declaratory and other relief. The relevant process is the execution of a writ of possession, leave to issue which has been granted by Raphael FM.

3 When one reads the terms of the declaration sought, one would think that that must be so unless there is an administrative arrangement at least or a legislative power leading to an administrative arrangement at best that would permit the New South Wales Sheriff to act in aid of the processes of the Federal Magistrates Court.

4 S78 of the Federal Magistrates Act 1999 deals generally with the enforcement of orders and judgments and the entitlement to the beneficiaries of such orders and judgments to the same remedies for enforcement that are available in States and Territories. The section states:

78 Enforcement of judgment

(1) This section does not apply to family law or child support proceedings.

(2) A person in whose favour a judgment of the Federal Magistrates Court is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.
(3) Subsection (2) has effect subject to the Rules of Court.
(4) This section does not affect the operation of any provision made by or under any other Act, or by the Rules of Court, for the execution and enforcement of judgments of the Federal Magistrates Court.

5 S90 of the Federal Magistrates Act makes provision for the Chief Federal Magistrate, on behalf of that Court, arranging with the Chief Judicial Officer of another Australian court for officers of that court to perform on behalf of the Federal Magistrates Court the various functions set out in the subparagraphs of s90 (1). The section states:

90 Arrangements with other courts
(1) The Chief Federal Magistrate may, on behalf of the Federal Magistrates Court, arrange with the chief judicial officer (however described) of another Australian court for an officer or officers of that court to perform on behalf of the Federal Magistrates Court any or all of the following functions:
(a) the receipt of documents to be lodged with or filed in the Federal Magistrates Court;
(b) the signing and issuing of writs, commissions and process for the purposes of any proceedings in the Federal Magistrates Court;
(c) the authentication of orders of the Federal Magistrates Court;
(d) the administration of oaths and affirmations, and the witnessing of affidavits, for the purposes of any proceedings in the Federal Magistrates Court;
(e) such other non-judicial functions as are permitted by the Rules of Court to be performed under such an arrangement;
(f) such other non-judicial functions as the Federal Magistrates Court considers appropriate.
(2) If an arrangement under subsection (1) is in force in relation to the performance by an officer of an Australian court of a function on behalf of the Federal Magistrates Court, the officer may perform that function despite any other provision of this Act or any other law of the Commonwealth.
(3) A function performed on behalf of the Federal Magistrates Court in accordance with an arrangement under subsection (1) has effect as if the function had been performed by the Federal Magistrates Court.
(4) Copies of an arrangement under subsection (1) are to be made available for inspection by members of the public.
(5) For the purposes of this section, a member of the staff of an Australian court is taken to be an officer of that court.

6 S106 of the Federal Magistrates Act provides for the appointment of the Sheriff of the Federal Magistrates Court. The section states:

106 The Sheriff of the Federal Magistrates Court
(1) The Sheriff of the Federal Magistrates Court is to be a person engaged under the Public Service Act 1999.
(2) The Sheriff of the Federal Magistrates Court is responsible for the service and execution of all process of the Federal Magistrates Court directed to the Sheriff.
(3) The Sheriff of the Federal Magistrates Court is also responsible for dealing, on behalf of the Federal Magistrates Court, with:
(a) the Australian Federal Police; and
(b) the police forces of the States and Territories;
in relation to the service and execution of process of the Federal Magistrates Court directed to members of any of those police forces.

7 S107 provides that an officer or employee of the Commonwealth or a State or a Territory may be appointed by the Chief Executive Officer as a deputy sheriff of the Federal Magistrates Court. A deputy sheriff may, subject to any directions of the Sheriff, exercise or perform any of the powers and functions of the Sheriff. The section states:

107 Deputy Sheriffs
(1) An officer or employee of the Commonwealth, a State or a Territory may be appointed by the Chief Executive Officer as a Deputy Sheriff of the Federal Magistrates Court.
(2) A Deputy Sheriff may, subject to any directions of the Sheriff, exercise or perform any of the powers or functions of the Sheriff.

8 Annexure D to the affidavit of Adele Byrne sworn 8 November 2004 is an appointment by Mr Peter May, Chief Executive Officer of the Federal Magistrates Court, under s107 of the Federal Magistrates Act of a person, namely Gary Byles, to be a deputy sheriff of the Federal Magistrates Court of Australia. Mr Gary Byles is the Sheriff of News South Wales.

9 Any functions that Mr Gary Byles performs pursuant to his appointment under s107 of the Federal Magistrates Act can only be functions of the kind to which I have referred, namely, the enforcement or execution of orders or other processes of the Federal Magistrates Court. Those powers may be performed by him subject to what is provided for in s 107(2).

10 Mr Byles will be acting as a deputy sheriff of the Federal Magistrates Court and when he does so he will be doing so as if he is not the Sheriff of New South Wales. I say that to avoid any problems that might arise if he attends premises wearing the uniform of an officer of the Sheriff of New South Wales.

11 It might be desirable that what appears to be a fairly informal arrangement hitherto reached between the Sheriff’s Office of New South Wales and the Federal Magistrates Court be rendered less informal to avoid at the very least the matter to which Mr Knaggs referred, the undue interference of the performance of one duty (that of the Sheriff of New South Wales), by the requirement to perform another (that of a deputy sheriff of the Federal Magistrates Court).

12 On reflection, it may be that the observation I made as to uniform may be considered by some to be jejune. I think it is not without importance.

13 I dismiss the summons.

14 It might well be that everybody involved in what I will simply call “the bankruptcy” has been involved in it for some time and that wherever possible steps have been taken to defend or pursue the interests of one side or the other. The matter that I have dealt with today I regard as one of some importance. I have suggested various matters in my reasons for dismissing the summons.

15 As Smart AJ remarked in para 8 of his judgment of 22 October:

“It is wholly inappropriate for this Court to be intervening in matters which have been adjudicated upon by the Federal Magistrate’s Court and where a stay has been refused by the Federal Court of Australia.”

16 What his Honour said there is clearly correct. These proceedings I have dealt with first cannot, on any view, be described as proceedings which seek in any way to trespass upon the jurisdiction of the Federal Magistrates Court or the Federal Court of Australia, but it is very important where particularly Federal and State Courts interact out of administrative necessity or administrative convenience that the structure, ambit and boundaries of that interaction are clear.

17 The remarks I have been making I have been making in the context of a vigorous application for indemnity costs against Mr Knaggs personally. Nothing in the history of this matter recently in this Court warrants the making of any such order and certainly the view I have formed is that it was quite appropriate, as I understand Howie J to have hinted at on an earlier occasion, that any question of the powers of the New South Wales Sheriff be determined in the Supreme Court of New South Wales.

18 More probably than not had the information provided today in the affidavit of Adele Byrne, the Registrar of the Federal Magistrates Court, been provided earlier, if not as at 28 October 2004, nobody’s time would have been spent on the exercise today.

19 The appropriate order is that each party pays its own costs.

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Last Modified: 11/29/2004